Stollenwerck v. Greil

• Decision Date: 20 January 1921
• Docket Number: 3 Div. 478
• Parties: STOLLENWERCK et al. v. GREIL et al.
• Court: Alabama Supreme Court

87 So. 338

205 Ala. 217

STOLLENWERCK et al. v. GREIL et al.

3 Div. 478

Supreme Court of Alabama

January 20, 1921

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bill by N.J. Greil and others against Frank Stollenwerck and others to enjoin the obstruction of a street or alleyway. Decree for complainants, and respondents appeal. Affirmed.

For the facts not stated in the opinion, see former report of this case, 201 Ala. 303, 78 So. 79.

Goodwyn & McIntyre, of Montgomery, for appellants.

Steiner Crum & Weil, of Montgomery, for appellees.

THOMAS J.

The bill was to enjoin obstructing a part of a street abutting appellees' property in the city of Montgomery. Its equity was supported by the several provisions of a contract adopted June 9, and approved June 18, 1896, between the city council of Montgomery and the Mobile & Montgomery Railway Company and the Louisville & Nashville Railroad Company, a copy of which is attached to the bill and was set out in report of the first appeal. It was averred that the contract requirements had been carried out by the railroad company, the street in question had been opened to the public and used by the public since it was opened and improved by the railroad company pursuant to contract, and that respondents were obstructing this street at the time the bill was filed, and proposed to continue such obstruction thereof.

Respondents filed separate answers incorporating demurrers therein. On submission for decree, on demurrer to the bill, the judgment was for respondents, and complainants appealed. That record presented all of the pleadings, including the answers of the several respondents, the demurrers being part of such answers, and a reversal was had. Greil v. Stollenwerck, 201 Ala. 303, 78 So. 79. The opinion discussed at length the legal effect of said contract between the city council of Montgomery and said railroad companies; stated that the conclusion was reached in the light of the judicial and legislative history, pertaining to the contract, and also "in view of the averments in the answers of the several respondents." Held, that the street in question (termed in the contract a private street) was a public thoroughfare of the city of Montgomery. The gist of the opinion is in its concluding words:

"It follows from what we have said that we hold that the way in question is a street, and as such subject to the right of use by the public as other streets in the city, notwithstanding it is called a private street in the contract. This being true, appellees (respondents below) have no right to close it, or to prevent the appellees as abutting owners from using it, and appellants' bill to enjoin such obstruction and closing of the street in question contains equity, and the trial court erred in sustaining the demurrer to the bill for want of equity."

It will be noted that in considering the question presented on first appeal the court decided the case as presented by the bill and exhibit, challenged by the demurrer, incorporated in respondents' answers. This is made to appear in the second subdivision of the opinion. The court considered the bill and answers together, and referred particularly to specific allegations of the answer. The respective insistences are stated in that opinion as follows:

"The railway company also insists that neither the public nor the abutting owners on this part of the street have any right to use or easement in, to, or over, that part of the street; that when it ceased to use the land east of Lee street for a depot there was no necessity for a street or easement there; and that it or its successors in title have the right to close it up and prevent its use by the public or by the abutting owners.

"On the other hand, these appellants (complainants below), who are abutting owners on that part of the street so abandoned and closed, claim that the part of such street in question became a public highway, by virtue of the contract and of the use to which for many years it was put, notwithstanding it was in the contract denominated a 'private street.' ".

Mr Justice Mayfield said:

"The phrase in the contract 'private street' is a paradox, if not an absurdity or inconsistency, in the use of speech or words. Literally and strictly speaking, there is and can be no such thing as a private street. There are and may be both public and private ways, but not so as to streets. Streets are a certain class of public highways; a public street, literally speaking, means no more than a street, while a private street, literally speaking, is an impossibility. No way can be both private and a street; it may be one or the other, but not both. ***

"In construing this contract we

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